Legal Topics

Be Careful When Giving Your Debtor a Break

Suppose you own a note secured by a mortgage or deed of trust. It would not be terribly unusual for the debtor to come to you for some relief if he is having trouble making the payments.

The problem arises when the debtor has placed a junior lien on the property, because the modification of your note may cause your mortgage to lose priority.

Rule No. 1: If the modification does not make the loan more onerous to the borrower, your mortgage retains its priority.

Rule No. 2: If the mortgage specifically allows modifications to the note, priority is not lost, even if the restructured note is more onerous.

Rule No. 3: If the junior lienholder consents to the modification, priority is not affected.

Conclusion

It will not hurt your legal position to give your debtor a break as long as you receive nothing in return. If you do desire to receive something in return, order a title report to see if a junior encumbrance has been placed on the property.

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